In attendance were David Sander, and Co-Counsel, James Garrety, for the applicant; Paul Beckert, on behalf of Newtown Township; T.J. Walsh, on behalf of the Newtown Presbyterian Church and Newtown Ambulance, owned by the Newtown Veterans Association; and Craig Smith on behalf of Sycamore Street Associates. Mr. Auchinleck noted for the record that Vincent Lombardi, a party against the application, was not in attendance.

Mr. Sander noted for the record that by letter dated December 19, 2006, he had provided the Board and all parties copies of the attachments to Exhibits A-2 and A-4, except for exhibit “e” of the Redevelopment Agreement. He also provided smaller copies of Exhibit A-5. In response to Mr. Katz’s question, Mr. Sander said that he would attempt to locate copies of the appendix exhibit –D-III-A-1 of the environmental report.

(At this point Mr. Lombardi arrived)

Mr. Sander continued with direct testimony of L. Scott Mill, registered landscape architect on this project. In response to Mr. Sander’s questions, Mr. Mill said that he has not discussed revision of his testimony or his cross-examination with Mr. Sander.

Mr. Sander entered as Exhibit A-8, a revised plan.

Mr. Mill reviewed this new plan, noting that many of the waivers on the original plan might not be applicable to the revised plan, which has not yet been fully engineered. This plan shows gross square footage of 57,380 square feet, consisting of 20,980 square feet of retail, 5,960 square feet of restaurant and 30,440 square feet of office space, in accordance with requirements outlined by the Board of Supervisors for its support of the plan. This revision is smaller than that envisioned in the Redevelopment Agreement.

Mr. Mill said that there has been a recalculation of required parking for the project. Section 603.c.4 of the Ordinance states that parking is not required for employees in the TC Zoning District. This reduces the needed parking from 399 spaces to 384. In addition, the Ordinance requires one parking space for every two restaurant patrons. Originally the parking had been based on the restaurant’s 5960 square feet; however removing square footage for kitchen, restrooms, stairwells and entries, it was calculated that the serving area would be only 3190 square feet. Upscale seating arrangements for a restaurant that size would allow for 162 seats, or 81 parking spaces, reducing the required spaces to 332.

In response to Mr. Auchinleck’s question, Mr. Sander said that he would like to amend the application for relief of 125 parking spaces, 207 spaces where 332 are required. Pages 1 and 2 of Exhibit A-6 need to be revised to reflect this change. There is no change to page 3. The plan has been reduced from 57,992 gross square feet to 57, 380 square feet.

In response to Mr. Beckert’s questions, Mr. Mill said that the preliminary plan has not yet been engineered. He is not sure which waivers will still be required in the latest revision of the plan.

In response to Mr. Smith’s questions, Mr. Mill said that he does not know the relationship between the applicant “The Promenade at Sycamore, LLC”, and Elliot Building Group, signers of the Redevelopment Agreement.

Mr. Sander said that there is a relationship between the two entities. The Promenade at Sycamore is an entity created for this project under the umbrella of the Elliot Building Group.

Mr. Smith asked whether it was Mr. Mill’s understanding that the applicant is entitled to the Township’s support in this application if the plan complies with the Redevelopment Agreement. He referred to a letter dated December 18, 2006 from Mr. Sander to Mr. Beckert concerning statements made by a Supervisor about the Board’s support of the application. He offered the letter as Exhibit S-1.

Mr. Sander objected to both the letter and the questions being posed to the witness, noting that they are legal questions and Mr. Mill is a landscape architect.

Mr. Auchinleck said that he would not accept the letter at this time, however he would allow the cross examination about Mr. Mill’s understanding of the Redevelopment Agreement.

After further discussion, Mr. Smith said that he was attempting to demonstrate that this is contract zoning, and that the Township had an obligation to support this application.

Mr. Mill said that he was called as a witness to testify to the plan’s compliance with the Redevelopment Agreement. In response to Mr. Smith’s questions, Mr. Mill reviewed the dimensions of the property, and agreed that it is rectangular in shape and that there is a slope toward the rear, with steep slopes at the perimeters of the property. He was using numbers contained on a features plan dated May 9, 2006.

Mr. Smith asked that this plan be admitted into evidence. Mr. Sander objected because the plan has been changed substantially since that date. After further discussion, Mr. Auchinleck accepted the plan of existing features dated May 9, 2006 as Exhibit S-2.

In response to Mr. Smith’s questions, Mr. Mill reviewed the dimensions of the property a second time, agreeing that it is a relatively regular, rectangular lot that is 50 feet wider than it is deep. He is not aware of whether the Township’s Ordinance requires lots to be deeper than they are wide. There are no ponds or streams on the property, but there is an existing abandoned building, pavement, curbing and fencing. He would estimate that the building is about 12,000 square feet. Although he has not looked into it, he thought that it might be possible to build a structure on the property that complies with the Ordinance, but this would involve disturbance of steep slopes and trees. He did not know whether the applicant paid for the property voluntarily.

Mr. Smith questioned Mr. Mill about parking provisions, noting that the Ordinance requires 332 parking spaces, and the Redevelopment Agreement anticipated 230 parking spaces. In response to Mr. Smith’s questions, Mr. Mill said that the plan now shows a smaller building than anticipated by the Redevelopment Agreement. The agreement had anticipated a residential component that has since been eliminated. He was not sure of calculations for parking requirements for residential uses, but agreed that a residential use would probably not require as many parking spaces as an office use.

Mr. Mill reviewed the diagonal parking arrangement in the parking garage. He agreed that the side yard variances were needed to accommodate the 207 parking spaces within the garage. He does not know whether the applicant has offered to lease parking spaces from Sycamore Street Center.

Mr. Mill said that he has been a landscape architect since 2002; he has only designed what landscape architects are licensed to do. When he has testified that the architectural elements of the proposed structure will compliment the street and the church he is giving a lay person’s opinion.

In response to Mr. Walsh’s questions, Mr. Mill said that he does not know whether the Zoning Officer has reviewed the revisions in parking calculations. He said that the lot size is 1.96 acres, or 85,508 square feet. The minimum lot size in the TC district is 7,500 square feet.

In response to Mr. Walsh’s questions, Mr. Mill said that the architectural style complements that of the church on the front façade; he has not seen architectural renderings for the sides and rear of the building. The applicant has spoken to the Church and Ambulance Squad about landscape buffering at the time of the May 2006 plan, but not for this latest revision. He reviewed the setbacks and widths of the building, noting that the front yard setback will be one foot at the retaining wall of the restaurant. This wall will be about six feet in length, in front of a 300 foot wide building. At other points along the front façade the setback will be about 7 feet, the restaurant building itself will have a 12 foot setback. Retail sections B and C will be set back about 11 feet, and D and E are about 20 feet back from the property line.

Mr. Mill reviewed the height of the building, noting that at its highest point the mean height is 34 feet 8 inches. There are a variety of roof styles used, some peaked, some flat. The lower roof lines are 30 feet high. He does not know whether the entire building could have a roof line of 30 feet. He said that the first floor of the building will have a height of 17 feet, to accommodate vehicles passing through to the rear; the second story will be 10 feet, 27 feet in total.

Mr. Walsh asked Mr. Mill to review the steep slopes, which are 15 – 25% on three sides of the property.

Mr. Mill said that the steep slopes are man made, although the Ordinance does not differentiate. The elevations of the property measure as follows:

Southeast corner – base – 164

Southeast corner – top - 168

Southwest corner – base – 170

Southwest corner – top - 176

The property line falls near the top of the slopes. At the rear, the line between the Ambulance property and this site is not quite at the top of the bank. Although the plans have not been engineered, he thinks that the slopes will be disturbed, and a swale will be created. Trees planted on the slopes will be removed. A fill analysis has not been done.

In response to Mr. Lombardi’s question, Mr. Mill again reviewed the calculation for the restaurant parking. The restaurant will be 5960 square feet; however removing square footage for kitchen, restrooms, stairwells and entries, it was calculated that the serving area would be only 3190 square feet. Upscale seating arrangements for a restaurant that size would allow for 162 seats, or 81 parking spaces. The indoor dining room will have 138 seats; the outdoor patio will accommodate 24 seats. The restaurant will occupy the first floor of the building only.

On redirect, Mr. Sander asked Mr. Mill to review the parking requirements in the Redevelopment Agreement. Mr. Mill said that the parking referenced in the Agreement was 230 spaces, a ratio of one space per 272 square feet; the revised plan shows 207 spaces, a ratio of one space per 277 square feet. To equal the ratio of the Redevelopment Agreement 11 more parking spaces would be needed.

Mr. Auchinleck provided all parties to the application a copy of the summary memo prepared by the Codes Office, attached to the Board members’ copy of the application.

In response to Mr. Katz’s questions, Mr. Mill said that the revised plan shows a building similar in size to that of the Redevelopment Agreement; this plan is less than 500 square feet smaller than in the Agreement. He does not have any information on the heights of other buildings in the area, or in Newtown Borough. There are different facades on the building, but it is one building. Referring to Exhibit A-2, Mr. Katz noted mention of accessing the parking structure from South Eagle Road. He asked whether this possibility had been investigated.

Mr. Mill said that it was his understanding that the Veterans Administration would not agree to allow access from South Eagle Road through its Ambulance Squad property.

Mr. Katz referred to Exhibit A-4, which references a timetable for removal of the existing structure. He asked why the old building was not removed sixty days after the signing of the Redevelopment Agreement dated May 25, 2005.

Mr. Sander said that the Agreement had been amended on July 11, 2005. That amendment requires that the building be demolished within sixty days of issuance of building permits. He agreed to provide a copy of the amendment for the record.

Mr. Katz referred to the request for variances from the loading berth requirements. He asked whether the applicant had investigated delivery schedules of suppliers of the businesses anticipated to ascertain that deliveries could be made in vans at off hours. He said he is concerned that this would create a situation that would need to be monitored.

In response to questions from Mrs. Bowe, Mr. Sander said that Exhibit A-2 was a document prepared by the Acme Visioning Committee two years before the Redevelopment Agreement was signed. Exhibit A-3, The Developer Additional Information Request, is what Elliot Building Group responded to with its plans. The Redevelopment Agreement was drafted prior to the selection of a developer. Elliot’s proposal is attached to the agreement. The proposal refers to office, retail and residential uses, however residential use has since been removed from the plan, with the removal of the third story.

In response to Mr. Katz’s questions, Mr. Sander reviewed the various exhibits, noting that the “proposal” is the attached first, second and third floor plans attached to the Redevelopment Agreement. The proposal had been an in person PowerPoint presentation with sample sketches.

In response to Mrs. Bowe’s question, Mr. Mill said that the second floor office area is 30,440 square feet, gross space, including stairwells, restrooms, etc. The net office space is 27,897 square feet.

In response to Mr. Auchinleck’s questions, Mr. Sander said that the 20 foot easement is not in place yet. He does not know what easements will be needed for the revised plan shown in Exhibit A-8. He agreed that it would be difficult to build the project without disturbing neighbors, and that that some easement would be necessary for emergency access.

Mr. Auchinleck marked as Exhibit A-4-C, the Purchase and Sale Agreement, and as Exhibit A-4-d the Modified Phase I Environmental Site Assessment of the Acme Building. He noted the date of Exhibit A-8 as January 22, 2007.

Mr. Sander asked Mr. Mill to review his answer to the question of the ratio of parking spaces to square footage in both the current plan and the Redevelopment Agreement proposal.

Mr. Mill said that he had been mistaken in his earlier response; the Redevelopment Plan had a ratio of 1 parking space per 272 square feet; the current plan has a ratio of 1 parking space per 277 square feet; to make the ratio equal, an additional 4 spaces would be needed for the current plan. Mr. Mill agreed with Mr. Smith that parking is calculated by use and not by square footage alone.

Jeffrey L’Amoreaux was sworn in.

Mr. Sander offered as Exhibit A-9 Mr. L”Amoreaux’s Curriculum Vitae.

In response to Mr. Sander’s questions, Mr. L’Amoreaux said that he is a professional engineer who has performed over 100 traffic impact studies. He has worked on traffic signalization, and redevelopment plans. As an employee of Carroll Engineering he served on the Sycamore Street Committee. He is currently employed at Van Cleef Engineering.

Mr. L’Amoreaux was accepted as an expert witness.

Mr. L’Amoreaux said that he has reviewed this Zoning Hearing Board application, and has determined that the three proposed uses for the site would require 332 parking spaces. Initially it was thought that 399 spaces would be required, however employee parking was removed from the calculation, reducing the number to 384. The restaurant requires one space per two patrons. It was determined that the restaurant could seat 162 patrons, requiring 81 parking spaces. The restaurant space used does not include kitchen and restroom areas, only floor space where patrons could be served. Each use would have its peak parking needed at different times of the day.

Mr. Sander entered as Exhibit A-10, a Parking Demand Analysis.

In response to Mr. Sander’s questions, Mr. L’Amoreaux explained that the parking analysis compares the parking required for each business at each hour of the day. He has revised the analysis based on the revised plan entered as Exhibit A-8. In the revised plan, the office size has been reduced, the retail size has been changed, and is based on a gross leasable retail space of 18,428 square feet, and the restaurant parking has been calculated based on seating. The analysis shows parking needs for non-December Fridays, non-December Saturdays, December Fridays and December Saturdays. He noted that the December analysis uses 138 restaurant seats, rather than 162 seats, because 24 seats are for outdoor dining. The only deficits in parking availability are on December Fridays between noon and 2:00 PM. Mr. L’Amoreaux said that he did not think that those deficits would occur because the analysis was prepared using a publication called “Parking Generation”, which does not have a category for specialty shopping. He used the shopping center category, which shows a greater need for parking than he thought would be accurate. The manual “Trip Generation” does show a difference between specialty shopping and shopping center, and those numbers are more in keeping with the type of shopping anticipated at this site.

Mr. L’Amoreaux said that in preparing the analysis he assumed the restaurant would serve lunch and dinner during the week, and brunch, lunch and dinner on weekends. All numbers used came from the “Parking Generation” manual, published by the Urban Land Institute and a tool recognized by traffic engineers.

In addition to preparing the analysis, Mr. L’Amoreaux counted cars on Sycamore Street between Durham Road and Washington Avenue on the Friday and Saturday before Christmas, 2006. There are 61 on-street parking spaces available on Sycamore Street, of which only 21 were in use on December 22, 2006 at 4PM. He also counted 46 occupied parking spaces in the Sycamore Street Center parking lot at that time, leaving 103 spaces empty. He said that he feels the parking for this plan is sufficient, especially when combined with available parking on Sycamore Street. It was his opinion that there would be no negative impact on Mr. Smith’s lot at Sycamore Street Center.

In response to Mr. Sander’s questions, Mr. L’Amoreaux said that he had opportunity to observe the traffic flow along Sycamore Street and on Jefferson Street. There is a “no turn on red” sign facing Jefferson Street at Sycamore Street. This causes traffic to back up on Jefferson Street into the Borough. In addition to the “no turn on red” sign, there is a sharper angle for cars turning onto Sycamore Street at this intersection, heading north. It is about a 95° angle for that turn. At the point where an exit from this site is planned, there would not be a need for a “no turn on red” sign; there is no problem with sight distances. The angle for turning is 90°. Sycamore Street’s recent redevelopment has been done with provision for entrance into this site. The traffic light has a display facing the site; there are curb cuts and a driveway opening. At the time of renovation of Sycamore Street, a project of this scope was anticipated for this site.

In response to Mr. Beckert’s question, Mr. L’Amoreaux said that he had not been authorized to conduct a traffic impact study. In response to Mrs. Laughlin’s question, he again reviewed the restaurant seating: 162 seats, 138 indoor and 24 patio seats.

Mr. Sander said that the analysis assumed full capacity at the lunch and dinner hours.

Mr. Auchinleck said that cross-examination of this witness would continue at the next hearing. He reviewed the Zoning Hearing Board’s calendar, and noted that there is already a full agenda for February 1, and March 1. He suggested that the application be continued to March 1, with the understanding that additional special meetings might be needed after March 1.

Mr. Wall moved to continue the application of The Promenade at Sycamore to March 1, 2007. Mr. Lenihan seconded and the motion passed unanimously

Mr. Wall moved to adjourn at 11:00PM. Mr. Lenihan seconded and the motion passed unanimously.